The legal battles over the treatment of transgender students have mostly been about sex discrimination. However, a decision from the 4th Circuit illustrates how disability discrimination can come into play. Let’s think about the Americans with Disabilities Act (ADA) and Section 504 as they might apply to transgender students.
The case involved a transgender woman who was incarcerated on the male side of the prison and denied the hormone therapy prescribed for her for several months. She also alleged continual harassment from prison officials as well as other inmates. The plaintiff had been living as a woman for years and had a Maryland driver’s license indicating female sex. But the prison’s policy ignored that and separated people solely on the basis of genitalia. Got a penis? You go to the mens’side.
The plaintiff sued the sheriff and some others. What makes the case Dawgworthy is the legal basis for the suit. Unlike most transgender plaintiffs, Ms. Williams did not allege sex discrimination under Title IX, but rather, disability discrimination under ADA and 504. The suit alleges that the plaintiff has gender dysphoria and was subjected to discrimination because of it. If courts accept that theory, you can expect it to come up in public school cases.
The ADA has a broad definition of disability applying to any “mental or physical impairment” that “substantially limits” a person in a “major life activity.” However, Congress wanted to make sure that this law was not used to protect those whom Congress did not want to protect. So there is an exclusion:
Under this chapter, the term “disability” shall not include—
(1) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, GENDER IDENTITY DISORDERS NOT RESULTING FROM PHYSICAL IMPAIRMENTS, or other sexual behavior disorders;
(2) Compulsive gambling, kleptomania, or pyromania; or
(3) Psychoactive substance use disorders, resulting from current illegal use of drugs. 42 U.S.C. 12211(b), emphasis added.
So there it is in plain language—gender identity disorders are not to be considered to be “disabilities” and thus, trans individuals cannot claim protection under ADA or 504.
However, the 4th Circuit held that “gender dysphoria” is not the same as “gender identity disorder.” It’s a subset of that term. The court noted that “gender dysphoria” is marked not just by incongruence between biological sex and gender identity, but also by “clinically significant distress” felt by those who experience that incongruence.
This is a ruling on a Motion to Dismiss, meaning that the court was required to assume the truth of the plaintiff’s allegations and, essentially, give the plaintiff the benefit of the doubt in how it construed the statute. But I bring it up in the Daily Dawg because I am sure we will see this same issue playing out in public schools.
Advocates for LGBTQ individuals have long argued that none of these conditions, by themselves, should be treated as an impairment of any kind. But this case is not about gender identity. It’s about the “clinically significant distress” that may arise from that condition. So you may see parents making claims of disability discrimination on behalf of children with symptoms of gender dysphoria.
The case is Williams v. Kincaid, a published decision issued by the 4th Circuit on August 16, 2022, and cited at 45 F.4th 759.
DAWG BONE: HEADS UP, SECTION 504 COORDINATORS.
Got a question or comment for the Dawg? Let me hear from you at jwalsh@wabsa.com.
Tomorrow: Toolbox Tuesday!!